Introduction

Today,
commercial actors are increasingly the predominant users of outer space, a
stark contrast to the Cold War era of the “space race” characterized by near-total
government control over funding and management of space activities. Far from
its past use as an arena for superpowers competing for geopolitical supremacy,
outer space is evolving to be a domain in which private actors, using private
capital, cooperate and compete for business; and, from their headquarters and
factories on Earth, either innovate and profit or fail.

The
continuing commercialization of outer space may be ascribed to many factors,
not least of which are advancements in technologies, reductions in costs, and
emerging capabilities and opportunities (along with corresponding business plans).
Standing at the fore of the growing and globalizing commercial space sector is the
United States, where the industry is experiencing unprecedented growth through
an influx of private investment and novel research and development. The
industry’s maturation is being guided by the anticipation that new markets,
both government and commercial, will soon be accessible and vibrant in the
“final frontier.”

The
industry’s trajectory may be explained by its economics, board rooms,
billionaire patrons, and rocket scientists. Yet just as important an influence
– if perhaps more subtle – has been the “guiding hand” of government policy.
The United States’ government has, for decades, pursued a generally consistent
national policy of enabling and fostering the development of a robust commercial
space sector. This has been implemented and is reflected in all facets of
Federal and state power – White House policy guidance, statements, and
decisions; agency regulations; judicial adjudications; and state tax codes and
incentive programs, to name just a few.

It’s
also reflected in federal statute. Beginning in the mid-1980s and continuing to
this day, a series of laws – the Commercial Space Launch Act of 1984; the
Commercial Space Launch Amendments Act of 1988; the Land Remote Sensing Policy
Act of 1992; the Commercial Space Act of 1998; the Commercial Space
Transportation Competitiveness Act of 2000; the Commercial Space Launch
Amendments Act of 2004; and the Commercial Space Launch Competitiveness Act of
2015 – have progressively established and updated the statutory basis and
authority for licensing and regulating commercial space activity. By tracing
the evolution of commercial space statute through successive legislation, a
picture of the sector’s policy priorities, challenges, and interests begins to
emerge.

Far
from a comprehensive study, this essay is a brief survey of the decades-long
evolution in statute governing the United States’ commercial space activities. It
relies extensively on the Congressional record, reports, public testimony, and
other available primary sources to piece together the positions, debate, and
details of the time. To accommodate the reader’s interest in further insights,
these sources are heavily cited throughout this piece. Limited in scope, the
essay omits other key legislative endeavors – particularly those related to
NASA, the Department of Defense, and the privatization of satellite
communications services – which have contained provisions affecting, sometimes
profoundly, the commercial space sector. The reader and author will need to
rely on a more exhaustive study to tell in full the rich story of commercial
space law, its Congressional proponents and opponents, and the many on and off
the Hill who have played a hand in its creation.

Licensing Launches –
The Commercial Space Launch Act of 1984

The origins of the United States’ commercial space
statute can be traced to 1984, with the passage of the “Commercial Space Launch
Act.” This legislation established an authorization and licensing regime for private
space launches; subsequent commercial space bills have largely built off and
amended the language produced through this “organic law” act.

Throughout
the 1960s and 1970s, only the Department of Defense and National Aeronautics
and Space Administration (NASA) provided launches from American soil; as
private companies and foreign companies began producing and purchasing
satellites in the 1970s, they had to contract through the government for
launch. The Space Shuttle, introduced in the early 1980s, was intended to take
all American satellites into orbit; however, it became clear that the Shuttle’s
flight schedule could not meet growing launch demand.[i]

In
1982, the first private launch of a rocket took place in the United States. The
process required to gain government authorization for the launch –required by
the Outer Space Treaty, of which the United States is a party – was convoluted
and time-consuming, as no agency had been designated with the authority for
launch licensing.[ii]
A year later, President Reagan issued a directive that the government would
facilitate the commercialization of launch activities in the United States.[iii]

Concurrently,
interest was growing in the Congress on the commercialization of space
activities. In 1981, the Congressional Space Caucus was formed, led by
Congressmen Newt Gingrich (R-GA) and Daniel Akaka (D-HI). Between Gingrich’s
personal affinity for space and Akaka’s parochial interests, the Caucus grew to
include a substantial membership and became a leading force on Congressional
focus on space throughout the 1980s.[iv] The
commercialization of space launch was an early and primary focus of the Caucus;
in 1982 and again in early 1983, Rep. Akaka introduced the “Space Commerce
Act,” which would have designated the Department of Commerce as the authorized
lead agency for licensing launches.[v] The
bill had heavy co-sponsorship by colleagues on the Caucus.[vi]

However,
as the Space Commerce Act waited for floor action, the Department of
Transportation (DOT) began to press a case that – given its experience as a
deregulator – it should be the lead agency for licensing launch, and was
successful in convincing that point to the President; in November 1983, he
announced his intention that DOT be given the role.[vii] Although
the Space Commerce Act had been reintroduced in September – incorporating the
House Subcommittee on Space Science and Applications’ amendments to-date – as
the “Commercial Space Launch Act,” the House had signaled that it would defer
final consideration on the bill pending this decision, having received pushback
from the Office of Management and Budget.[viii],[ix]
Following President Reagan’s announcement, the Subcommittee received testimony
from the Secretary of Transportation on how the Department of Transportation
envisioned its role as the lead licensing agency; based on this testimony, the
Commercial Space Launch Act was redrafted and circulated to the Administration
for comment.

In
February of 1984, President Reagan signed an Executive Order formally
designating DOT as the lead agency. DOT had for months been socializing the
concept with the Congress, to mixed reception.[x] Nonetheless,
by 1984, both the Senate and House expressed growing approval of the move. However,
they noted the need for Congressional codification that would eliminate the
possibility of Executive redirection or restructuring of the emerging licensing
arrangement – a view shared by industry.[xi],[xii]

Throughout
the spring of 1984, the Subcommittee and full Science Committee met several
times to mark-up the bill – responding to unfavorable comments on particular
sections received from NASA, DOT, and FCC in January – and advanced it to the
full House on May 23rd. In June, the House favorably passed the bill
by voice vote.[xiii]
In the Senate, a companion bill was introduced by Senator Trible (R-VA) in
August, with a hearing held in September that largely reaffirmed the need for a
lead agency to license launches and the proposed approach.[xiv]
On October 3rd, the Senate Committee on Commerce, Science, and
Transportation advanced the referred Commercial Space Launch Act – as an
amendment in the nature of a substitute, reflecting compromises between the
Senate and House versions – and the full Senate passed the bill on the 9th.[xv] On October 30, the bill became law.[xvi]

While
most significant for laying an enabling regulatory groundwork for commercial
launch activities in the United States, the Commercial Space Launch Act also
contained other provisions of relevance for the budding commercial space
industry. This included sections encouraging the use and acquisition of excess
launch facilities by the private sector, and a requirement that licensed launch
operators purchase and maintain liability insurance at a level deemed necessary
by the Secretary of Transportation.

The Commercial Space Launch Act established the foundation for commercial launch activities in the United States, but the industry was slow to materialize in the years that followed. The Space Shuttle continued to be used as the principal vehicle for commercial satellite launches. Then, in January 1986, the Shuttle Challenger was lost in a launch accident; in response, President Reagan announced in August that the Shuttle would no long be used for commercial launches – in part, a move to incentivize the development of commercial launch vehicles.[xvii]

In
September of 1987, the House Subcommittee on Space Science and Applications
held several hearings on the state of the commercial launch industry. Industry
representatives testified that insurance requirements for space launch were a particularly
significant barrier to entry into the launch market.[xviii]
The Commercial Space Launch Act had given the Department of Transportation
authority to set minimum insurance levels for liability and government property
damage. However, there was outstanding uncertainty about whether insurance
would be available to cover such risks – as written in the Senate’s later
report, an uncertainty accentuated by government requirement to assume all
risks insurable and non-insurable.[xix] The
Congress also noted the emergence of a European launch competitor, Arianespace,
which led the global market share of commercial satellite launch – Arianespace
was shielded from the financial consequences of unlimited liability by the
promise of European government-backed indemnification.[xx]

In
response to the testimony received, Representative Bill Nelson (D-FL), the
Chairman of the Subcommittee who had expressed enthusiasm for the President’s
decision to commercialize satellite launches,[xxi]
drafted and introduced the “Commercial Space Launch Amendments Act” in December
of 1987, with 25 co-sponsors. The bill sought to establish a workable
risk-sharing regime between industry and government – allowing launch
companies, as an alternative to obtaining full liability insurance, to
demonstrate sufficient responsibility to compensate claims resulting from a
failure during a licensed launch, while the Department of Transportation would
pay for successful claims that were not compensated by insurance.

In
February of 1988, the Subcommittee held a second series of hearings on the
bill, which addressed industry and Department of Defense, NASA, and Department
of Transportation perspectives on insurance requirements and liability reform
for commercial launch licenses.[xxii]
In April, the Subcommittee considered amendments incorporating comments
received from Administration and industry witnesses, rejecting tort reform but
establishing reciprocal waivers of claims between launch operator and customers
and subcontractors, setting maximum liability amounts, and setting maximum insurance
requirements for third-party claims, damage to government property, and
cross-claims. Industry would need to demonstrate liability insurance for up to
$500 million, while also covering maximum probable loss of government property
not to exceed $100 million. The United States government would indemnify and
pay third-party claims in excess of the maximum probable loss, but not to
exceed $1.5 billion, adjusted for inflation.[xxiii]
As pay-out through government indemnification would require Congressional appropriation
of funds, a mechanism was established within the bill to expedite passage of a
compensation plan through the Congress. A “clean” bill was subsequently
introduced and approved by the House Science Committee on April 21st.
A month later, it was passed in the house by voice vote.[xxiv]

In
the Senate, Senator Writh (D-CO), with Senators Bentsen (D-TX) and Dansforth
(R-MO), introduced a companion bill in May; the Senate heard testimony from
Administration officials and insurance industry representatives concerning both
the House and Senate measures that month.[xxv]
In October, the Senate Committee on Commerce passed the House measure with an
amendment in the nature of a substitute, incorporating Senate provisions, and
the full Senate passed the bill on the 14th with a voice vote. On
October 21st, the House agreed, 355-1, on the Senate’s amendments.[xxvi]
The bill was signed into law on November 15th, 1988.[xxvii]

While an indemnification regime for commercial launch
was the primary and pressing focus of the Commercial Space Launch Amendments
Act, the legislation also addressed other areas of interest pertaining to
commercial launch. It encouraged NASA and the Department of Defense not to
preempt licensed launches from access to launch sites or property; required a
study on best practices for scheduling commercial launches at government launch
sites; and directed NASA to design a program to support research and
development into launch system technologies.

Reforming Remote Sensing – The Land Remote
Sensing Policy Act of 1992

Like commercial launch, the Congress had also taken
interest in the commercialization of Earth observation services and satellites
throughout the 1980s – a response to significant Executive direction and action
to that effect.[xxviii]
In the 1970s, NASA developed, launched, and operated the Landsat satellites to
gather Earth imagery, which became particularly valuable for organizations such
as the Department of Interior and the scientific community. The early 1980s saw
an effort to commercialize the civil Landsat system, which culminated in the
passage of the Land Remote Sensing Commercialization Act of 1984.[xxix]
The Department of Commerce was given licensing authority for private Earth
observation (“remote sensing”) systems, while a program was established to contract
commercial operations of the Landsat systems.

However,
by the early 1990s, it was becoming increasingly apparent that the
commercialization effort was failing.[xxx]
The Senate and the House held a series of hearings on the effort in late 1991[xxxi]
and early 1992[xxxii],
where witnesses and Members expressed similar concern about shortfalls in
funding and the lack of a competitive marketplace materializing for Earth
observation data. The House’s Science Committee had also frequently consulted
with the White House’s National Space Council, which was reviewing policy
options since early 1989.[xxxiii]
The House and the Senate subsequently began a parallel effort on reform
legislation.

In
October of 1991, Rep. Brown (D-CA), Chairman of the House Science Committee, introduced
the “Land Remote Sensing Act of 1992.” The bill was reported out of Committee
in May, having been marked up with an amendment – in the nature of a substitute
– prepared by Rep. Brown, the Science Committee’s Environment Subcommittee
Chairman Scheuer (D-NY), and Rep. Walker (R-PA), which reflected suggestions
made by the Administration.[xxxiv]
The bill passed by the House on voice vote on June 6th.

In
the Senate, Senator Pressler (R-SD) introduced the “Land Remote Sensing Policy
Act of 1992” on February 27, 1992, and in August the Senate Committee on
Commerce reported the bill. What followed was a series of legislative maneuvers
to expedite the legislation’s passage through both chambers, to reach the
President’s desk before the end of the 102nd Congress. On October 7th,
the Senate incorporated the measure, through a substitute amendment, into the
House’s version, which had been referred to the Senate after its passage. The
Senate then passed the House version by voice vote. In the House, Rep. Brown
had reintroduced the bill – incorporating the Senate’s language – on October 5th.
On October 6th, the bill was discharged from the Science Committee,
considered by unanimous consent on the House floor, and passed. On October 28,
the President signed the bill.[xxxv]

While
the Land Remote Sensing Policy Act made a number of significant changes to the
civil operation and organization of the Landsat program, it largely left the
licensing regime for private remote sensing systems established under the 1984
act intact. Most significant for industry was that the Land Remote Sensing
Policy Act, unlike the 1984 legislation, allowed operators of private remote
sensing systems to sell their data to whomever they wished at market terms –
enabling the development of a competitive marketplace;[xxxvi]
the 1984 act required all data to be sold at the same terms and conditions to
all potential customers. A requirement was also added that the Department of
Commerce respond to applications for licenses within 120 days, slightly
alleviating a significant source of uncertainty for companies wishing to pursue
development of a private remote sensing satellite.[xxxvii]

Following the passage of the Land Remote Sensing
Policy Act in 1992, the Congress made little headway in further dedicated
commercial space legislation throughout the 1990s – despite introduced bills
and efforts to do so. Nonetheless, the “Congress [continued] to be interested
in [commercial space] issues… with the announcement of policies intended to
create a stable business environment for the commercial development of space,
both the government and the commercial sector have identified areas for
improvement.”[xxxviii]
In 1996, toward the end of the 104th Congress, Rep. Walker
introduced the “Space Commercialization Promotion Act.” The bill passed the
House in September, but languished after introduction in the Senate. In May of
1997, Rep. Sensenbrenner (R-WI), Chairman of the House Science Committee, reintroduced
a substantively similar bill – the “Commercial Space Act.”

Through May, the House Subcommittee on Space and
Aeronautics held three hearings regarding the bill. The first dealt with
identifying improvements in the remote sensing regulatory regime to support
continued growth of the sector;[xxxix]
the second dealt with issues of regulation on commercial space transportation,
particularly licensing emerging “reusable” rockets which could land after
launch as well as in-space transportation services[xl] –
witnesses agreed that a regulatory regime to license reusable rockets was
necessary, though it was premature to establish one for in-space
transportation;[xli]
while the third also dealt with commercial remote sensing, particularly on
improvements that could be made to the remote sensing policy, particularly the
Land Remote Sensing Policy Act[xlii].

In June, the Subcommittee and full Committee marked-up
the bill, with minor amendments being made to satisfy Administration requests.[xliii]
As stated during the markup, the Committee would push ahead with provisions
requiring the Departments of Defense and State to list, in the public register,
its concerns related to national security and international obligations on
submitted remote sensing license applications, so as to ensure further
licensing transparency and certainty for the industry.[xliv]
Notably, the Committee report chastised the Department of State for its
“failure to appear before the Committee [during hearings on remote sensing] and
offer its comments in a public forum limit the value or import that can be
given to the Department’s concerns, many of which appear to be inconsistent
with existing law in the Land Remote Sensing Policy Act of 1992.”[xlv]

On November 4, despite an earlier call of “no quorum”
on the House floor,[xlvi]
the House passed the bill by voice vote. A companion bill was introduced by
Senator Graham (D-FL) on November 8, which codified Administration policy on
the use of excess ballistic missiles as launch vehicles but did not include the
House bill’s remote sensing provisions.[xlvii]
On March 5, the Senate convened a hearing on the House’s bill.[xlviii]

On June 2, the Senate Committee on Commerce reported
the bill with an amendment in the nature of a substitute – incorporating
several changes, including the addition of Senator Graham’s excess ballistic
missile provision. The legislation was then finalized as it “bounced” between
chambers, both making minor modifications through amendments to the others’
passed version. On July 30, the Senate passed the bill by unanimous consent –
significantly, to secure its passage by unanimous consent, the Senate’s version
struck the Houses’ remote sensing provisions.[xlix]
On October 5, the House agreed to the Senate’s amendments with its own amendment,
making further minor changes; the Senate agreed to that amendment on October 8
by unanimous consent. Finally, on October 28, the bill was signed into law.[l]

As passed, the Commercial Space Act contained a series
of significant overhauls to standing commercial space statute, as well as new
measures to foster the continued commercial development of space.[li]
It established, as policy, that the economic development of space was a
priority goal for constructing the International Space Station, and required
NASA to study commercial opportunities onboard and in using the International Space
Station. By amending the Commercial Space Launch Act, authority was given to the
DOT’s Office of Commercial Space Transportation to license commercial reentry
activities, filling a regulatory gap related to – and facilitating the
development of – reusable rockets that could land after launch. The bill
authorized the government’s purchase of space science data and Earth remote
sensing data from commercial providers, so as to offer the industry more market
opportunity. It mandated that the government, to include the Department of
Defense, was required – except under certain circumstances – to procure space
transportation services from U.S. commercial providers, which would be treated
as commercial acquisitions under federal acquisition regulations. Finally, as
noted, the bill codified national policy prohibiting the use of excess
intercontinental ballistic missiles as space launch vehicles.

Without an extension, the commercial space
launch risk-sharing regime established by the Commercial Space Launch
Amendments Act of 1988 was set to expire in December of 1999.

In
July of that year, Congressman Rohrabacher (R-CA), Chairman of the House
Subcommittee on Space, introduced the “Commercial Space Transportation
Competitiveness Act” in response to FAA and industry testimony on the need for
renewal to the spaceflight indemnification regime. The bill would extend indemnification
for commercial space launches for 5 years – to 2004.[lii]

On
July 29, the bill moved through the Science Committee, and in October it passed
the House by voice vote after remarks in support by Chairman Sensenbrenner,
Rep. Gordon (D-TN), and Rep. Lampson (D-TX).[liii]
The bill remained in the Senate until October of 2000, when an amendment in the
nature of a substitute, making minor modifications, was presented by Senator
Lott (R-MS) for Senator McCain (R-AZ) – who had worked with Senators Hollings
(D-SC), Frist (R-TN), and Breaux (D-LA) on the language[liv]
– and agreed to by unanimous consent. On November 1, 2000, the President signed
the bill into law.[lv]

While
the extension of indemnification was perhaps the act’s most significant
provision, it also authorized, for 3 years, appropriations for two offices with
mandates to promote and regulate the commercial space sector – the Office of
Commercial Space Transportation in the Department of Transportation, and the
Office of Space Commercialization in the Department of Commerce. The
legislation also required a report on the indemnification regime, expressing
the views of NASA, the Department of Defense, the Office of Commercial Space
Transportation (AST), and the Office of Space Commercialization on the
adequacy, effectiveness, and continuing need for liability risk sharing for
commercial space launch – and whether the policy would need to be changed,
perhaps towards the approach of the airline liability regime.

A major milestone for commercial spaceflight occurred
in October 2004, when the privately-funded, human-piloted SpaceShipOne
spacecraft flew into space on a suborbital trajectory – the first private
launch with humans onboard.[lvi]
SpaceShipOne’s team had been competing in the Ansari X Prize competition,
established in 1996 – by the time it won the competition, SpaceShipOne had been
years in development. A unique “hybrid” vehicle, SpaceShipOne was lofted into
the air by an aircraft, at which point it detached, ignited its rocket, and
flew to space.[lvii]

While
the X Prize and SpaceShipOne prompted predictions of a new era in commercial
spaceflight, they also highlighted significant gaps in standing commercial
space law and regulation. How would “hybrid” space vehicles be licensed? How
would suborbital spaceflight be addressed? How would commercial human
spaceflight be regulated, and what sort of safety regime would be established?

Efforts
to address these questions began in June 2003, when Senator McCain and Senator
Brownback (R-KN) introduced the “Commercial Space Transportation Act of 2003.” The
bill aimed to extend the commercial space launch indemnification regime and
mandated a report by the Secretary of Transportation on the need for a
regulatory regime for suborbital vehicles.[lviii]
While the bill failed to gain traction in the Senate, it prompted a joint
House-Senate hearing on commercial human spaceflight.[lix] There
was general consensus among witnesses that, during early stages of the
commercial human space flight, customers would have to waive all claims of
liability against the companies taking them into space. The witnesses also
requested that Congress indemnify companies against the consequences of human
launch accidents in the same manner that the federal government indemnifies
launches by the traditional commercial space transportation industry.[lx]

In
response to the points articulated at the hearing, Rep. Rohrabacher introduced
the “Commercial Space Act of 2003” in October. In November, the House
Subcommittee on Space and Aeronautics held a second hearing, focused
particularly on the newly introduced bill.[lxi]
The hearing examined whether commercial human space flight should be regulated
in the FAA AST, as opposed to the FAA’s Regulation and Certification Office or
through office. Witnesses expressed differences in opinion across the board.[lxii]

The
Commercial Space Act was soon subsumed by a more complex and developed bill
also introduced by Rep. Rohrabacher, the Commercial Space Launch Amendments
Act, which was cosponsored by the Science Committee Chairman, Rep. Boehlert
(R-NY) and Ranking Member, Rep. Gordon. The bill was reported favorably from
the Committee in February 2004. On March 4, the House passed the bill, 402 – 1,
though not without the threat of amendment from Rep. Luca (R-OK) and Rep. Flake
(R-AZ); Flake contesting the amount of money authorized for AST under the bill,
and Rep. Lucas requesting the House consider changing definitions appearing in
the bill when negotiations ensued in the Senate.[lxiii],[lxiv]
Both amendments were withdrawn on the House floor.[lxv]

The
bill stalled in the Senate, despite Senator Inhofe (R-OK) introducing in August
a companion bill, the “Space Chase Act,” which mirrored its language. While the
Senate Commerce Committee took no action on the bill, bipartisan negotiations
began between the staff of the House and Senate committees; the edits were
extensive enough that, on November 18, Rep. Rohrabacher reintroduced the bill
in the House to incorporate them.[lxvi]

A
vote on Rep. Rohrabacher’s newly introduced bill was scheduled in the House on
November 20 when last-minute issues emerged. While the House Transportation
& Infrastructure Committee, which had jurisdictional control over issues
pertaining to the FAA, had declined a legislative referral on the bill[lxvii]
– indicating that it had no substantive objection – senior Democratic members
of the Committee felt otherwise. A debate occurred when the bill came to the
House floor, with Rep Oberstar (D-MN), Ranking Member of the Committee, and
Rep. DeFazio (D-OR) analogizing human spaceflight to traditional aviation and
arguing for a licensing regime that placed a greater emphasis on passenger
safety.[lxviii]

Despite
these objections, the bill was passed with a final vote of 269 – 120. However,
in the Senate, where a vote by unanimous consent was scheduled, an “anonymous
hold” was placed on the bill – done over definitional issues over suborbital
vehicles that took off under jet power but went to space under rocket power.[lxix]
With the hold on the legislation, the bill seemed destined to die at the
expiration of the Congress; the media following the bill’s progress anticipated
it would fail.[lxx]
However, with last minute support from the newly-elected Senate Minority
Leader, Sen. Reid (D-NV), the Senate took the bill up on December 8 and passed
it – one of the final bills to pass the waning 108th Congress. On
December 23, the bill was signed into law.[lxxi]

As
Rep. Rohrabacher’s final bill – which ultimately passed both chambers – was
pre-negotiated, no conference committee was convened nor was a conference
report drafted. Considered without debate in the Senate, the legislative
history on Senate deliberations is nearly non-existent.[lxxii]
Nonetheless, the language featured in the passed legislation reflects compromise
found between the House Science and the Senate Commerce Committees. As
described by Rep. Boehlert, the language of the bill “is the equivalent of
a conference report, as it reflects bipartisan negotiations” between the two
chambers.[lxxiii]

While
being called by some an “industry wish-list,”[lxxiv]
the Commercial Space Launch Amendments Act achieved several significant aims
for the regulation of commercial spaceflight.[lxxv]
Among them, the legislation located all regulatory authority for commercial
human spaceflight in the FAA’s Office of Commercial Space Transportation and
established an “experimental permit” category that would allow industry to test
new types of reusable suborbital rockets. It again extended the commercial
launch indemnification regime. Perhaps most importantly, it established a
regulatory regime for commercial human spaceflight: requiring AST to issue
regulations for crew training, limiting safety requirements for non-crew
passengers – “spaceflight participants” – to consist only of informed of, and
providing written consent to, the risks of their participation. A “learning
period” for commercial spaceflight was created, in which the Secretary of
Transportation would not issue safety regulations beyond the informed consent
regime established in the bill. In short, despite the objections raised by the
House T&I Committee’s Democrats, the bill established what a majority in
the Congress ultimately decided was the most balanced regulatory regime to
foster the development of the nascent commercial human spaceflight industry.[lxxvi]

The U.S. Commercial
Space Launch Competitiveness Act of 2015

In the decade following the Commercial Space Launch
Amendments Act of 2004, the launch indemnification regime and industry
regulatory “learning period” were, through various pieces of legislation not
specific to commercial space, extended. However, by 2015, the indemnification
regime was to sunset in 2016,[lxxvii]
while the learning period was to end on September 30, 2015.[lxxviii]
The launch and human spaceflight industries, which had not grown and developed
as anticipated following the flight of SpaceShipOne, desired another extension.[lxxix]
Meanwhile, several companies were exploring business plans for mining asteroids
for valuable resources – another novel area of space activity for which there
was no statutorily-approved authorization regime.[lxxx]

On May 12, Rep. McCarthy (R-CA), House Majority
Leader, introduced the “Spurring Private Aerospace Competitiveness and
Entrepreneurship (SPACE) Act. Among other provisions, the bill sought to update
several of the standing provisions in commercial space statute – extending the
“learning period” prohibition on commercial spaceflight regulation through
2023, extending the launch indemnification regime through 2023 while providing
for an updated calculation on maximum probable loss for insurance requirement, extending
indemnification to cover spaceflight participants, and extending cross-waivers
of liability to include spaceflight participants.[lxxxi]

The same day, Senator Cruz (R-TX), Chairman of the
Space Subcommittee, introduced a companion bill to the SPACE Act – the
“Commercial Space Launch Competitiveness Act.” It contained many of the
provisions of the House bill, though it did not include indemnification or
cross-waivers for spaceflight participants and only extended the learning
period and launch indemnification through 2020.[lxxxii]
Unlike in the House, the bill enjoyed bipartisan support, with co-sponsorship
by Sen. Nelson, Ranking Member of the full Senate Commerce Committee, and Sen.
Peters (D-MI), Ranking Member of the Space Subcommittee. On May 20, the Senate
Commerce Committee favorably reported the bill on a unanimous voice vote.

On May 13, the House Science Committee marked up the
SPACE Act. Democratic members of the Committee opposed the act, particularly
its provisions on spaceflight participants and its extension of
indemnification. Science Committee Ranking Member Eddie Bernice Johnson (D-TX),
Space Subcommittee Ranking Member Edwards (D-MD), and Rep Grayson (D-FL) all
spoke against the bill, Rep. Grayson in particular saying that “any limitation
of liability, any indemnification, is wrong… we invite an accident, we invite a
tragedy, if we limit liability.”[lxxxiii]

Democratic members of the Committee offered a series
of amendments – to shorten the learning period and launch indemnification to 5
years, to elimination a provision that would allow suborbital companies to hold
launch licenses and experimental permits simultaneously for the same vehicle,
and to remove a specification that federal courts hold sole jurisdiction for
legal action arising from a licensed launch. However, all amendments were
struck down on party lines.[lxxxiv]
Meanwhile, the Committee approved – again on party lines – an amendment by Rep.
Knight (R-CA) to extend indemnification and the learning period to 2025.[lxxxv]

During markup, the Committee also incorporated three
other pieces of commercial space-relevant legislation into the SPACE Act’s text.
Two of them proved non-controversial – one, sponsored by Rep. Bridenstine
(R-AK), requiring the Department of Commerce to report on delays in issuing
licenses for remote sensing spacecraft and examining any needed updates to
remote sensing statute, and one, sponsored by Rep. Rohrabacher, renaming the
Office of Space Commercialization to the Office of Space Commerce and updating
the scope of its responsibilities. The third was the Space Resource Exploration
and Utilization Act of 2015, introduced earlier in the year by Rep. Posey
(R-FL) and Rep. Kilmer (D-WA), which permitted American companies property
rights to resources they mine or otherwise obtain in space.[lxxxvi]

The Committee’s Democrats raised concerns about
whether the bill would comply with international treaties, particularly the
Outer Space Treaty, which prohibit appropriation of extraterrestrial territory
by means of use or occupation. Ranking Member Johnson introduced an amendment
that would replace the bill with an interagency study on the legal issues on
space resource property rights. Again, Rep. Johnson’s amendment failed.[lxxxvii]
The SPACE Act was then reported favorably out of Committee on party lines,
18-13.[lxxxviii],[lxxxix]

On May 21, the full House took up the bill. In debate,
Rep. Edwards noted that the bill “simply doesn’t adequately protect the
public’s interest regarding safety of spaceflight participants – both the
bill’s supporters and opponents pointed to a Statement of Administration Policy
that, while not opposing the bill, called attention to concerns it had about
the learning period extension.[xc]
During the bill’s time on the floor, several amendments making minor changes
and additions were considered and accepted. Rep. Edwards introduced an
amendment that would replace the bill’s text with the Senate’s version, passed
a day earlier.[xci]
However, the amendment was voted down on near-party lines,[xcii]
with Republicans noting that the House bill, a compilation of several bills,
now contained many more provisions.[xciii]
The House then moved to vote on the bill, which it passed 281-133 – with nearly
every Republican and 48 Democrats voting in favor.[xciv]

The House and Senate conducted a conference through
the summer and into the fall, concluding work on October 28.[xcv]
However, on October 29, a “hold” was placed on the bill, reportedly over the cross-waiver
provisions for spaceflight participants that House Democrats opposed during the
May markup.[xcvi]
However, the hold was lifted, presumably over an alteration in the conferenced
Senate text that would eliminate the cross-waiver provision for spaceflight
participants in 2025; the House’s version would have applied the provision indefinitely.
Among other changes, the conferenced text also contained a significant revision
to the space resources property rights language included in the House bill –
extended the right from applying only to material obtained from asteroids, to
materials obtained from any “celestial body;” however, the revised language
deleted a provision allowing for civil relief from “harmful interference” by
other actors United States entities during the course of resource utilization
activities.[xcvii]

On November 10, the bill was discharged by unanimous
consent from the Senate Committee on Commerce, was considered – as an amendment
in the nature of a substitute – on the Senate floor, and passed by unanimous
consent. On November 16, the House passed the Senate’s amended bill by voice
vote. On November 25 – as the 114th Congress wound down – the
President signed the bill into law.[xcviii]

Like the Commercial Space Act of 1998 and the
Commercial Space Launch Amendments Act of 2004, the Commercial Space Launch
Competitiveness Act made several significant updates to existing commercial
space statute while establishing new areas of law.[xcix]
Though a comparatively minor portion of the bill, the provisions establishing a
statutory basis for private space mining received significant academic and
press coverage.[c] The
bill extended indemnification for 10 years, through 2025 – a far longer
extension than had been in other bills; it also extended the “learning period”
through 2023. Creating a new legal category for government-employed individuals
who fly on spacecraft – “government astronauts” – the bill enabled NASA’s and
international partners’ astronauts to ride on commercial vehicles without
signing the otherwise required liability waivers, removing a potential legal
roadblock (as the government can’t waive its liability).[ci] Finally,
the bill laid a framework for further legislative action on commercial space
activity by requiring reports on the remote sensing licensing regime and needed
reforms, and on streamlining the launch licensing regime.

Observations,
Conclusions, & Author’s Remarks

As
noted in the introduction, this essay has set out to briefly review and
describe the evolution of the United States’ commercial space statute,
detailing the contents of its constituent legislation and the general process
by which that legislation was developed and passed. Given the present
availability of primary and secondary sources, and of Congressional documents,
the picture becomes clearer for the legislative efforts of recent years than
for the efforts of the 1980s and early 1990s. Constrained both by scope and by the
accessibility of information, this paper could not capture in full all of the
debate, compromise, staff participation, and Member involvement that surely molded
and influenced the law we have today. Nonetheless, several general observations
and conclusions can be drawn from the story presented.

First
is on the importance of stakeholders in the legislative process and debate.
Space policy professionals, especially those working for the commercial sector,
are closely familiar with particular members of Congress and their staff – and
for good reason. As seen in this legislative history, certain individuals were
more closely and consistently involved in the crafting of commercial space
legislation than their colleagues. Members such as Rep. Rohrabacher, Rep.
Sensenbrenner, Rep. Johnson, Rep. Gordon, and Rep. (and later, Sen.) Nelson,
among others, are seen playing significant – often leading – roles in several
of the efforts of this decades-long history.

Motivations
for this involvement varied: sometimes from parochial concerns (such as was
suggested for Rep. Akaka, or for the “space state” members from Texas and
Florida), to genuine passion and personal interest (such as Rep. Gingrich, and
increasingly, Rep. Rohrabacher). Congressional organizations and caucuses, such
as the Space Caucus of the 1980s, can play significant – sometimes critical – roles
in identifying and building interest, motivation, and support for particular
legislative efforts. In short, Members “matter” – a widely recognized, though
perhaps often underappreciated fact. Legislation is not developed impartially, solely
on “pure” issues of public policy; rather, it is the interests, perspectives,
experiences, and legacies of the Members and staff involved that are often
pivotal in shaping a bill’s final form. For narrow fields such as commercial
space, statute has been influenced more by the Members who “showed up” by
joining (or being assigned to) relevant Committees and Subcommittees of
jurisdiction, than it has by those who didn’t – in a sense, the body of
commercial space law that exists today is more a reflection of the efforts and
policy positions of handfuls of Members than it is of the whole of Congress.

Yet
it is not just Members who “matter.” The history of commercial space
legislation demonstrates that external stakeholders play significant roles in
the identification of issues to address and the shaping of debate. This is
especially true for commercial space law – statute designed in particular to
govern particular actors and stakeholders, not the public at-large. Through
meetings with staff and Members and testimony delivered at tailored hearings,
the commercial space industry has – throughout the decades – identified
emergent capabilities and corresponding areas of regulatory concern. The
legislation developed has closely reflected those positions; indeed, to the
point that some have decried the bills as “industry wish-lists.”

However,
industry is not alone in playing an important external role in the legislative
process. As seen, the Congress has consulted with and considered the positions
and perspectives of the relevant regulating agencies, the Administration,
academia, think-tanks, interest groups, and others with a stake in or position
on commercial space. Language in these bills has frequently been added,
modified, or struck to capture and accommodate their concerns. Noted multiple
times for several of these acts, the final product is not “a perfect bill.”
Rather, it is compilation of compromises – a common ground forged between the
perspectives of Members of both chambers, a delicate balance struck between
various groups and interests with often different – and sometimes entirely
disparate – desires and concerns. This is not unique to commercial space
legislation; rather, it is the defining characteristic of the legislative
process, and indeed of governance in general.

For
those who follow, study, or participate in the legislative process, the
evolution of commercial space statute is an exemplary case-study in the myriad
procedures, steps, and maneuverings that legislation can undergo. The
legislative process is rarely as simple and straightforward as suggested in
basic civic classes; as the various pieces of commercial space legislation
demonstrate, arriving at passage of a bill can require significantly advanced
legislative procedure. There are “holds” that can be placed in the Senate to
force adjustment to contentious language (as seen in the Commercial Space
Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness
Act of 2015); bills can be finalized through final-vote floor amendments
adjusting the other chamber’s final-vote floor amendments (seen in the
Commercial Space Act of 1998); bills can be introduced and reintroduced,
sometimes in the last moments, to incorporate the other chamber’s language and
expedite passage (seen in the Land Remote Sensing Act of 1992). Legislation may
substantively replicate and build upon bills that failed in previous Congresses
(the Commercial Space Act of 1998) or consist of several separate bills
compiled together in a markup (the Commercial Space Launch Competitiveness Act
of 2015). Legislation may feature companion bills introduced in the other
chamber to force the legislative process, or it may not. Simply put, there is
no definitive, singular way that an idea becomes a bill, or a bill becomes a
law.

That
said, the evolution of commercial space statute has shown a remarkable
consistency in the adherence to a “regular order” in general Congressional
process. Except, perhaps, for the Commercial Space Launch Competitiveness Act,[cii]
each bill developed in a similar way – Subcommittees and Committees holding
hearings, often several, on particular topics of legislative interest; a bill
being introduced reflecting the testimony and perspectives offered in the
hearing; Subcommittee and Committee markup, sometimes including opportunity for
amendment; floor consideration, sometimes offering opportunity for amendment;
and votes on final passage. At a time when many decry what is perceived as a
gradual breakdown in the legislative process, the various commercial space
bills reflect the Congressional process largely “working right” – offering
stakeholders the opportunity to offer ideas and expert opinions and giving
Members the opportunity to ask questions, offer perspectives, and contribute
substantively to language.

The
evolution of commercial space law is also demonstrative of how legislation often builds upon past statute. It features an
“organic law” – in this case the Commercial Space Launch Act of 1984, or the
Land Remote Sensing Policy Act of 1992 – which sets a statutory foundation for
a particular topic. Subsequent legislation establishes new policy by building
upon that organic law through explicit amendment – such as the Commercial Space
Launch Act being amended over the years to feature an indemnification regime
and “learning period” regime, incorporate suborbital and reusable rockets in
licensing, enable the issuance of “experimental permits,” and cover human
spaceflight. Congress need not – and, as seen, often does not – establish whole
new sections of statute and code in order to address new or developing topics
in a particular issue area.

Turning
to more specific observations on commercial space policy, as revealed through
this legislative history – first, particularly encouraging during this era of
increasing political polarization, commercial space has been a topic of generally
broad bipartisan support and cooperation. Most bills, particularly in the 1980s
and 1990s, were passed by unanimous consent or non-controversial voice votes
and featured non-contentious mark-up processes, in which amendments were widely
accepted or not offered at all. While there was, of course, minor disagreements
over language in the earlier bills, it was not until the Commercial Space
Launch Amendments Act of 2004 and the Commercial Space Launch Competitiveness
Act of 2015 that significant partisanship – or split votes – had been
demonstrated in markup or on the chamber floor. Even then, this disagreement
has largely focused around the indemnification and passenger safety regimes;
significant policies, to be sure, but not the entire scope of commercial space
statute.

It
is notable that the indemnification regime has been a consistent focal point
for legislative efforts on commercial space since the 1980s. Originally
designed to sunset only several years after the 1988 bill’s passage, it has now
been extended for nearly three decades – and is set to last for at least
another several years from today, if not indefinitely. The “learning period” on
safety regulations increasingly looks to be in similar circumstances. As both
policy topics have seemingly been settled for some years to come, the partisan
disagreement demonstrated during the latest passed commercial space bills may
not similarly materialize in upcoming ones – though a Congressional Democratic
Majority could, conceivably, revisit and amend the regimes.

Otherwise,
commercial space legislation has largely focused on straight-forward and
generally bipartisan issue areas seeking to promote and foster the growth of
the commercial space sector. As new capabilities not envisioned in earlier bills
came online or were proposed – reusable rockets, commercial Earth observation
satellites, suborbital spacecraft, private human spaceflight, asteroid mining –
the Congress has addressed the resultant regulatory gap. Aligned with
Administration policy, the Congress has pursued policies which mandate that the
government maximize utilization of – and minimize competition with – commercial
space service and launch providers. When regulatory or licensing regimes have
been demonstrably “broken” or clear impediments to industry development, the
Congress has attempted to fix or revise them. Through consistent reporting
requirements and study mandates, the Congress has sought to identify relevant issues
and opportunities addressable by future legislation.

In
all, the legislative history of commercial space statute is a fascinating
case-study into Congressional processes and procedures, as well as the specific
policy areas of focus and concern for the commercial space industry and the
Congress. If the past thirty years of commercial space legislation suggest
anything, it’s that, so long as commerce is pursued in the “final frontier,” it
will surely be accompanied by a relevant legislative proposal (and debate) in
the halls of Congress.

[xiv]
“Commercial Space Launch Act: hearing before the Subcommittee on Science,
Technology, and Space of the Committee on Commerce, Science, and
Transportation, United States Senate, Ninety-eighth Congress, first session, on
S. 2931.” 98th Congress, September 6,
1984.

[xviii]
“State of Commercial Launch Industry, Hearings before the Subcommittee on Space
Science and Application of the House Science, Space, and Technology Committee,”
100th Congress, September 15, 17,
1987.

[li]Detailed section-by-section breakdown,
particularly of Committee views on each provision, may be found in the House
and Senate reports. Note that the Senate’s report, issued subsequent to the
House’s report, provides a more accurate perspective on the bill’s language as
it approached its final form passed into law: “House Report No. 105-347,
Commercial Space Act of 1998.” Pgs. 19-32. and
“Senate Report 105-198.” Pgs. 9-15.

[lxxv]A detailed breakdown of these provisions,
including their rationale and differences between the earlier and later
versions of the legislation, may be found in: “The Evolution of the Commercial
Space Launch Amendments Act of 2004,” Pgs. 38-71.

[lxxxix]A full description and explanation of the
Democrat’s dissenting views on the SPACE Act’s provisions may be found in the
“Minority Views” section of the House Report: “House Report 114-119 –
Spurring Private Aerospace Competitiveness and Entrepreneurship Act of 2015,”
Pgs. 67-71.

[xcix]Detailed section-by-section breakdown,
particularly of Committee views on each provision, may be found in the House
and Senate reports. Note that the House’s report, covering the provisions of
the additional bills added to the text, is more comprehensive than the Senate’s
version. Also note that neither report reflects the language of the final bill
as passed into law: “House Report 114-119 – Spurring Private Aerospace
Competitiveness and Entrepreneurship Act of 2015,” Pgs. 10-30. and “Senate Report 114-88, U.S.
Commercial Space Launch Competitiveness Act,” 114th Congress. July 22, 2015. Pg. 2.

[cii]As suggested in the “Minority Views”
section of the House report – which stated that no hearings were held for the
bill – though disputed in the Majority’s background write-up: “House Report
114-119 – Spurring Private Aerospace Competitiveness and Entrepreneurship Act
of 2015,” Pgs. 67-71.